Round Objects

Ethics, public choice theory, electoral systems, and constitutional, administrative and international law (mainly with an Australian perspective).
(This blog was formerly named "Daily Constitutional", til I found that name was already taken.)

Thursday, January 03, 2013

Fitz[G]erald Rapport

Come to think of it, I'm sure I heard at least one angry National Party supporter in the late 1980s complaining that the Fitzgerald Inquiry “of course” had a pro-Labor bias because it was chaired by that “weird looking” Griffith University professor with the panama hat who was always knocking Sir Joh Bjelke-Petersen.

Myself, I’d be more inclined to describe Ross to the uninitiated as not much as ‘funny looking” but “looking like he was created by the same deity who created Wallace & Grommit”:

… The day before I was due to leave [Hong Kong in 1999], my journalist friend [...] suggested I might interview a London-born old Communist China hand, Anthony Lawrence, who had broadcast from the BBC from Hong Kong for fifty years. When I requested that this be arranged, the woman from the Hong Kong tourist bureau virtually said, "Why on earth would he want to see you?" Persisting, as is my wont, I said, "Could you please do me a favour and ask him?" Half an hour later, she rang back gushing "Oh Professor, I didn't realise how famous you are. He has ALWAYS wanted to meet you. He said it would be a privilege." She continued, "You will be pleased to know that we can put you up at the Peninsula Hotel - in the president's suite." Immediately I knew what had happened: I had again been mistaken for the ex-Australian ambassador [scil the Australian ex-ambassador] to Communist China, Dr Stephen FitzGerald…

… But the Chinese did have one lingering concern. The Australian press was full of rumours that a "very young man" was set to become the country's first ambassador to the People's Republic. This was Steven FitzGerald, a Mandarin-speaking China specialist at the Australian National University, who had accompanied Whitlam to China in July of that year. It turned out an official in the Chinese Protocol Department mistook Steven FitzGerald for the (not-so-young) British historian and China-watcher CP Fitzgerald, about whom Beijing had misgivings. A few words about "history" were swiftly exchanged between Canberra and Beijing, allowing Steven Fitzgerald to take up his post in Beijing in March 1973.

Wednesday, May 18, 2011

Conservatives against entrenchment

Talking political rather than legal entrenchment, of course:
(1) Liam Fox:

[UK] Defence Secretary Liam Fox has challenged a plan to enshrine in law the
UK's promise to spend 0.7% of its gross national income on overseas aid. In a
letter leaked to the Times, Dr Fox says he "cannot support the proposal in its
current form". A source close to Dr Fox said the issue was not the level of the
target but how best to reflect this in law. Downing Street said it remained
fully committed to implementing its pledge in line with the coalition agreement.
[...] The defence secretary said that "creating a statutory requirement to spend
0.7%" on overseas aid could lead to legal challenges and limit the government's
options on where money was spent. International aid is one of only a handful of
areas, including health spending in England, being ringfenced from spending cuts
over the next four years. Most other departments are seeing their budgets
slashed - defence spending by 8% by 2015. [...]

[...] "Entitlements" are unrepublican: They are contemptuous of the most basic principle of responsible government — that a parliament cannot bind its successor. Which is what entitlements do, to catastrophic effect. [...] "Entitlement commitments are not debts," wrote John Hinderaker of the blog Powerline. "Congress can wipe them out simply by repealing Medicare, Social Security and Medicaid." That’s technically true in the same sense that it’s technically true Congress can wipe out a lot of our debts — or at any rate our debtors — by nuking Beijing. But is either likely to happen under any scenario this side of total societal meltdown? Indeed, I find it easier to imagine economic collapse, secession, civil war, Mad Max on I-95, cannibal gangs of the undocumented preying on gated communities of upscale gays, etc, than any combination of House, Senate, and president "repealing Medicare, Social Security and Medicaid." [...]

The Republican Governor of South Dakota in the United States [*] has signed a bill which would make it a crime to perform an abortion unless the mother's life is in danger.... Governor Mike Round issued a statement in which he said, "the true test of a civilisation is how well people treat the most vulnerable"...
- John Shovelan, "US state tightens abortion law", ABC News (Tuesday 7 March 2006, 8:13am AEDT)

Wednesday, May 12, 2010

The Constitution of Fiume (no, wait, come back! This is interesting!)

Found this quite by accident on Wikipedia while trawling the Wikisource list of Constitutions:
A constitution drafted, for the short-lived Republic of Fiume (in northern Italy when founded in 1920; now in Croatia), by the poet and adventurer Gabrieled'Annunzio . Unlike certain other short-lived republics established in northern Italy during tumultuous post-war years, Fiume actually seems like a decent sort of polity - if only it had survived.
From a lawyer's point of view it is full of professional interest. Okay, the preamble is a bit George Lucas, but that's the nature of the preamble genre (IIRC, Communist China's preamble, too, reads like a Ridley Scott screen crawl):

The Enduring Will of the People

Fiume, for centuries a free Commune of ancient Italy, declared her full and complete surrender to the mother-country on October 10, 1918. Her claim is threefold, like the impenetrable armour of Roman legend.

Fiume is warden of the Italian marches, the furthest stronghold of Italian culture, the most distant land that bears the imprint of Dante...

Hang your head, Les "deep kinship" Murray!
But then we get on to the operative legal provisions, and even these are interesting:

8. The Constitution guarantees to all citizens of both sexes: primary instruction in well-lighted and healthy schools; physical training in open-air gymnasiums, [...]

Now there's some rights GetUp overlooked in its recent Bill of Rights lobbying push. In fact, looking at the typical GetUp member, "physical training in open-air gymnasiums" should be not merely a right but a legally enforceable duty.
Okay, you say, but Bills of Rights are meant to have stirring, noble declarations. Surely Fiume's machinery of government provisions are dull as dishwater? Not even the renowned d'Annunzio (who eloped with his schoolmistress at fifteen and went on from there) could sex up Australia's Section 57 double dissolution procedure, could he?
Not so. For a start, Fiume was meant to be a corporate state. Not in the loose, pejorative sense of Sir Peter Abeles witnessing secret succession pacts over cigars with Bob Hawke and all that, but in the specific sense (very popular in the 1930s - compare the contemporaneous constitutions of Ireland and Portugal) of organising society on the basis of occupational groups (guilds, you could say) that receive legal recognition, and even representation in government, as much as territorial divisions do:

8. Whatever be the kind of work a man does, whether of hand or brain, art or industry, design or execution, he must he a member of one of the ten Corporations [...] 9. The first Corporation comprises the wage-earners of industry, agriculture and commerce, small artisans, and small landholders who work their own farms, employing little other labour and that only occasionally.

The second Corporation includes all members of the technical or managerial staff in any private business, industrial or rural, with the exception of the proprietors or partners in the business. [...]

The ninth comprises all workers on the sea. [...]

Take that, Chris Corrigan!

... The tenth has no special trade or register or title. It is reserved for the mysterious forces of progress and adventure. It is a sort of votive offering to the genius of the unknown, to the man of the future, to the hoped-for idealization of daily work, to the liberation of the spirit of man beyond the panting effort and bloody sweat of to-day.

It is represented in the civic sanctuary by a kindled lamp bearing an ancient Tuscan inscription of the epoch of the communes, that calls up an ideal vision of human labour: 'Fatica senza fatica.' ["Fatigue without fatigue"? Huh?]

One tries to picture Sir Keith Aickin writing the High Court's joint judgment on whether, say, Milan Brych would be qualified to enroll in Corporation #10. One's imagination fails.
This would become important because it is as grouped in "Corporations" that citizens vote for the upper (I suppose you would call it) chamber of the Fiumean parliament:

27. Two elected bodies will exercise legislative power: the Council of Senators; [and] the Council of 'Provvisori'.

Well, so do their Australian namesakes, but usually with at least the formality of an election or two (with half a million people "voting for" them by putting a 1 in the party box above the line and sometimes as many as thirty or even forty people voting for them by putting a 1 next to their actual name below the line) between a Senator's initial appointment by the party to fill a casual vacancy and his or her eventual retirement to let another 33-year-old staffer from their electoral office have a suck on the parliamentary superannuation teat.

...They are elected in the proportion of one to every thousand electors, but in no case can their number be under thirty. All electors form a single constituency. The election is to be by universal suffrage and proportional representation.

Good stuff. Like the Israeli Knesset, except that if Israel had the same population ratio there'd be over 5,000 seats (ie, probably a couple more political parties than at present).

31. The Council of the Provvisori is composed of sixty delegates, elected by universal secret suffrage and proportional representation. Ten Provvisori are elected by industrial workers and agricultural labourers; ten by seamen of all kinds; ten by employers; five by rural and industrial technicians; five by the managerial staffs in private firms; five by the teachers in the public schools, by the students in the higher schools, and by other members of the sixth Corporation; five by the liberal professions; five by public servants; five by Co-operative Societies of production, of labor and of consumption.

Curious... The numbers are not the same for all Corporations, nor are they in proportion to a head count (why do sailors as a class count as twice the weight of public servants?). And unless my repeated re-readings are wrong, the "mysterious forces of progress and adventure", the "man of the future" represented by Corporation #10, don't get to elect any Provvisori.
So where exactly is the Republic of Fiume situate[d]?

1. The sovereign people of Fiume, in the strength of their unassailable sovereignty, take as the centre of their free State the "corpus separatum," with all its railways and its harbour. But, as on the west they are determined to maintain contact with the mother-country, so, on the east, they are not prepared to renounce their claim to a frontier more just and more secure than might be assigned to them by the next happening in the give-and-take of politics...

Just getting a hint here, a very vague impression, that not everyone was a happy camper at the Versailles Conference. Not to worry, though... entrenching irredentist grumbles about its borders in its Constitution always helps a partitioned country deal constructively with its historic grievances, doesn't it? (Exhibit A: Ireland's Article 2, 1937-98).
And finally:

43. When the province is in extreme peril and sees that her safety depends on the will and devotion of one man who is capable of rousing and of leading all the forces of the people in a united and victorious effort,

... we all buy copies of The Audacity of Hope as a way of donating to his campaign without breaching the US Federal Elections Act? No, wait, this was 1920...

... the National Council in solemn conclave in the Arengo [joint sitting - Article 34] may, voting by word of mouth, nominate a Commandant and transmit to him supreme authority without appeal. The Council decides the period, long or short, during which he is to rule, not forgetting that in the Roman Republic the dictatorship lasted six months.

Thursday, October 09, 2008

"The One" versus "That One"

Is it "the one" or "that one"? It depends on John McCain's mood. The Republican apparently believes both designations are equally appropriate for his Democratic opponent, Barack Obama. In an exchange on energy in Tuesday night's debate, McCain referred to Obama as "that one". The Democrats immediately claimed the comment as evidence of his disdain for Obama. In the spin alley after the debate, Obama aides labored strenuously to make the case that McCain's use of the words "that one" exposed the Republican candidate as angry and erratic and - not so subtly - old. However the Republican candidate's utterance made much less impact on television viewers than it did on spin doctors. The alleged dissing of Obama did not gain much traction yesterday, And it turns out McCain is equally at home with calling Obama "the one" - a reference Republicans believe shows up the Democrats' messianic pretensions...

"The difference between the two is otiose, even immaterial," conservative godfather William F Buckley opined [on] Thursday in an interview via ouija board, "since the Latin for both appellations (ille Unus) is tantamount - nay, coterminous entire - therewith."

"Appalachians? Haw! You dumb rightwingnuts!" sneered the New York Times' EJ Dionne. "Palin and her husband Todd may be Appalachians, but everyone knows McCain is a Panamite and that Obama comes from Hawaii, the 57th State."

UPDATE: The ouija board from WFB goes haywire. "Throw him off the yacht!"

Wednesday, October 08, 2008

Paging Lani Guinier

Iraqi Parliament repeals a law reserving seats for ethnic and/or religious minorities - mainly Christians, but also Shabeks and Yazidis (what, no sympathy for the Devil in Baghdad?) - which prompts conservative American Christians to realise that "quotas" is, perhaps, not semper et ubique a horror word.

Monday, February 11, 2008

Goldberg, Steyn on US electoral system

Two recent comments by conservative pundits Jonah Goldberg and Mark Steyn, both at National Review Online's "The Corner", warrant some dissection.
First, Jonah Goldberg wrote:

"... Voter turnout fetishization has been one of my oldest hobbyhorses... I like this email from a reader:

'Before the hate mail starts pouring in, I just wanted to let you know that I've always agreed with you on this. When I was 15, I went a school trip to Australia. Our class was at one of the government seats and tour guide was explaining to us that in Australia there is compulsory voting and that because of it more Australians vote then [sic] Americans (they were [sic] around 90% compliance). Previously she had explained that the order [in which] candidates are placed on the ballot was determined by random draw so that the advantageous spot at the top wasn't just assigned by alphabetical order. So I asked her if [sic] why would a system that needs to have a lottery to see who gets on the top of the ballot and gets all the votes of people who don't care possibly be better then a system where only the people that care vote? She showed us some lovely paintings right after that.'

'Jonah, I think Americans beat themselves up way too much over "low" voter turnout. For a start, the nature of American democracy is profoundly different: If you live in Hampshire, England, you can vote for just three offices - a local councillor, a Member of Parliament, a Euro-MP - every five years. If you live in New Hampshire, New England, you can vote for hundreds of folks - President, Governor, Senator, Congressman, State Representative all the way up to County Commissioner, Sheriff, Register of Probate, Town Clerk, School District Treasurer, Cemetery Commissioner, Library Trustee, Sexton, etc. If you factor in the multiple officers, America has the highest rate of civic participation in the developed world.

'The US system is designed to reward informed participation. That's why in America you get to choose not only which party you support but which candidate: There's no caucuses or primaries in most other democracies. And in Continental Europe you're mostly voting under PR systems for "party lists", and which particular representative you wind up with is decided by the bosses back at party HQ. I don't see why a higher turnout rate in national elections to check a box for someone whose identity will be revealed later should be the only measure of civic virtue.

'Secondly, a smaller vote tally is surely also a reflection of a smaller government. If the state controls your health care and your job, as it does in much of Europe, it's hardly surprising that more folks turn out to vote, any more than it's surprising that (to use a Goldbergian analogy) Homer Simpson drags his family along to Mr Burns' company picnics.

'Third, and to contradict myself, I'm not sure about your reader's Australian reference. The Aussies have had compulsory voting since (I think) the Twenties, and I wonder if that doesn't at least partially explain why they have some of the sanest politicians on the scene. Contrary to the received wisdom that high turnout would benefit the left, Australia's experience suggests it requires successful parties to be wary of disdaining a center that is (in the broadest sense) culturally conservative. If 100% of Americans had to vote, for example, there would be no talk of illegal-immigrant amnesty. (That said, I oppose compulsory voting on principle.)'

In reply to Jonah, I refer to Wikipedia's entry on "donkey voting" (as we call it here in Australia). Yes, yes, I know normally Wikipedia is not always the most reliable source. But that particular entry is very reliable, because I wrote a good portion of it. These paragraphs, in particular, which demonstrate that top-to-bottom voting also visibly occurs in the USA and Ireland, both of which have voluntary voting:

... Donkey votes are not limited to Australia: a similar effect has been observed in other democracies, even those without compulsory preferential voting, although the unique presence of these two factors in Australia makes the phenomenon more visible. Donkey voting shows up in US elections, for example, in States which use the "long ballot" for numerous offices, and/ or in multi-seat elections where there are several candidates from the same party. In his book The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights, 1845-1969 (Massachusetts: Harvard UP, 1974), Ward EY Elliott notes that:

"One long-time Democrat precinct captain in Denver noted that, besides having party or lobby support, a candidate had to rank high in the ballot list. Since ballot ranking was alphabetical, most of the eight Denver [district State] Senators had names beginning with A, B or C." (p 362, citing appellants' brief in Lucas v Colorado).

British pro-STV campaigner Enid Lakeman noted the same effect in UK local elections, where significant numbers of voters invited to X (say) three candidates for three council seats would simply X the three highest on the ballot-paper, even if they belonged to different parties.

However, since most non-preferential elections require the voter to mark only one single candidate, or one single party list, it becomes impossible to speculate how many votes for the first candidate or party on the ballot are genuine supporters and how many simply "donkey-voted".

Furthermore, in societies where voting is not compulsory, it seems counter-intuitive that many who attend the polls would be apathetic. However, there may be countervailing factors that produce a "donkey vote" even with voluntary turnout. In many US elections, a voter may well be intensely interested in (eg) the Presidential contest but not in other, less prominent races on the same "long ballot".

In Ireland, where voting is preferential but not compulsory, the donkey vote has its greatest effect not between parties but within them. With an alphabetical list of candidates, and several candidates from each major party for the 3 to 5 seats per district, the proportion of Dáil Éireann deputies with surnames A to M is typically much higher than 50%, whereas it is only about half the population (according to the Irish telephone directory). (See, eg, B Walsh and C Robson, Alphabetical Voting: A Study of the 1973 General Election in the Republic of Ireland, Economic and Social Research Institute (ESRI), General Research Series No #71, Dublin, January 1973). In O'Reilly v Minister for Environment [1986] IR 143, the Irish High Court upheld the constitutional validity of alphabetical listing against an equality-rights challenge, noting that despite its faults, A to Z does have the advantage of making it easy to find candidates on the ballot-paper.

Moreover, in some elections (eg Germany and some US States), the order of parties on the ballot is descending order of their support at the previous election (with new parties being placed lowest in random order). A system like this makes high ballot position both a cause and an effect of high electoral support...

Even with first-past-the-post voluntary voting universal for all US States, some US States already rotate the candidates' names as the ballots are printed (eg, New York and Ohio), while others (eg, Kentucky) draw lots. Taking this extra trouble would be pointless unless hard-headed politicians were aware that there are people going to the polls - voluntarily, without being compelled (indeed, in the USA, being discouraged) by the government - who still aren't quite certain about the candidates and so start at the top and work downwards until they run out of votes to cast.
I can't speak for the USA, but in Australia compulsory voting works well; it ensures (a) that if the Angry Far Left or the Angry Far Right number only 10% of the total population, they will also number only 10% of those who vote; and (b) that the election result isn't determined by whether it rains on polling day. Having said that, I think there should be a "none of the above" option on the ballot-paper.
Mark's description of party-list PR as "check[ing] a box for someone whose identity will be revealed later" is odd. As a part-Belgian, Mr Steyn would of course know that the majority of European party list systems give voters an opportunity to prefer individual candidates over team-mates from the same party. For example, in the recent Japanese upper house election (all right, Japan isn't in Europe, but it's a party-list system) former Peruvian president Alberto Fujimori was decisively rejected by the supporters of the "People's New Party" that nominated him, coming sixth (whereas the PNP won only 3 seats). In some European countries, particularly Switzerland and Finland, there is no party ranking at all and the result is determined solely by individual candidates' totals.
If you really want to criticise European party-list PR systems, a stronger ground is that they encourage multiple parties that are ideologically inflexible. But in terms of choice among candidates, it is simply not true to claim that Europeans don't know, when they vote for the Republican Party ticket, whether they'll end up electing Nixon, Agnew, Ford or Rockefeller.
(In fact, the only election I know of where voters had to choose a party ticket, without knowing the individual candidates' names, was an election that Mr Steyn praised highly.)

Sunday, February 10, 2008

The wilder shores of Triple-E

UPDATE: Some slight amendments. Thanks to Alan for a perceptive comment (indeed, more perceptive by far than any other comment ever made upon this post) that "The Canadian [S]enate is the standard-issue British colonial upper house of its time." True, but federalism wasn't standard-issue for British colonies, and what is true of an upper chamber in a single colony ("unitary", other than loose imperial supervision - much looser than supervision by a federal government) isn't necessarily true for the upper house of a federation. Other federal upper houses within the British Empire later adopted a model of mixing (a) indirect election by provincial assemblies with (b) appointment by the federal executive, in varying proportions - from Malaysia at the "appointed" extreme, through pre-apartheid South Africa in the middle, to India and Pakistan at the other. Canada's was, I believe, the first federal upper house under the British Crown - unless we stretch the definition of "federal" ve-e-ery widely to include the Scots peers in 1707 and the Irish peers in 1800.
And thanks to Mr Cosh himself for his feedback:

"That is indeed very interesting, the more so for its revelation that I was channelling the late personages of the JCPC. I see the "middle ground" point you are trying to make, but I'm not so sure it is really in the middle. It was really the position of the Chretien and Martin governments that they were actually forbidden to voluntarily exercise their discretion in favour of an elected candidate. I would still argue that nothing prevents the accommodation that Alberta has now reached with Prime Minister Harper; the PM is not abandoning the privilege of royal assent, merely exercising it according to a rule he freely accepts. Of course it's true that Triple-E advocates hope to establish a convention that is difficult for future PMs to retreat from, but much of our constitutional and peri-constitutional law is of precisely this nature. (And they were bold enough to retreat from it already after Mulroney left office.) For what it's worth, I see no flaws in your understanding of the history of the Senate, the reasons it operates the way it does, or its public standing."

Quick background: The founding fathers of Canadian Confederation, in 1867, were aghast at the horrors of the American Civil War. Too much democracy, they thought, too much sloganeering about popular sovereignty, "We the People" and all that. Not only was this hypocritical coming from slave-owners, but it was deeply destabilising. Just as the original 13 Colonies had invoked their people's sovereignty to secede from the British Empire in 1776, so too had the 11 Southern Confederate States in turn invoked their people's sovereignty, in turn, to secede from the American Union in 1860.
Similarly, federalism might be unavoidable over a large, sparsely-populated land with several rival population centres, but it was unwise to take the idea too far. (And since Canada, unlike the US, had a linguistically divided white population, the British North America Act 1867 gave protection to non-territorial language rights as well as the "States' Rights" of territorial regions). The fact that US Senators were (from 1789 to 1911) appointed by State legislatures, had led those legislatures to fancy themselves rather too highly.

(This is very broad-brush and simplified).

The Canadian founders therefore made the Dominion pretty much as unlike the United States as it is possible for an English-speaking, common-law, democratic federation to be. America has a President and Vice-President? Good for them - but we'll have a Monarch, Governor-General and Prime Minister, thanks. America has “States”? Fine. We’ll call ours “Provinces,” so they don’t start getting any ideas about sovereignty or secession. American States have Governors? We’ll call ours Lieutenant Governors! America has (or, by 1867, had developed) judicial review? Fine – we’ll enforce and uphold OUR Constitution through Royal powers of reservation and disallowance instead. America has a House of Representatives? We’ll have a House of Commons!
America has "States"? Fine. We'll call ours "Provinces", so they don't start getting any ideas about sovereignty or secession. American States have Governors? We'll call ours Lieutenant Governors! America has a House of Representatives? We'll have a House of Commons!

America has a Senate? Then we're going to have a... okay, we'll call it a Senate too. (There are fewer alternative labels around for Upper Houses - "Senate", "House of Lords", "House of Councillors", "Council of the Regions", "Federal Council", and "First Chamber" [*] pretty much exhaust the list - than there are for Lower Houses, which can be the "House of Representatives," "House of Commons," "Dáil," "National Assembly," "General Assembly," "Second Chamber" [*], "Lok Sabha," "Chamber of Deputies", "Congress of Deputies", "Chamber of Representatives", "House of Delegates", etc, etc). But Canada's Senators were not to be elected - not by voters, not even by State legislatures; nor even (unlike Bismarck's Germany about this time) appointed by State governments. Instead, they would all be appointed by the federal Governor-General. In practice, the Prime Minister. And they would serve for life (or did until 1965, when retirement at age 75 was introduced for future appointees, just as Australian High Court judges swapped life tenure for retirement at age 70 in 1977).

Yes, the new Dominion's Senators would still "represent" particular regions - Provinces (Ontario), inter-Provincial regions (the Maritimes), intra-provincial regions (Quebec's 24 divisions). But this requires only that they own a home within the region represented. Short of coordinating some near-unanimous restrictive covenant that would block a really, really unpopular Senate appointee from meeting the requirement of residence within their area, there is no way for the inhabitants of that region to control who "represents" them

If you get the idea I think this is not world's best practice, you are correct. There do exist sound arguments in favour of electing (some) legislators indirectly, by a large number of disparate, dispersed small-E electoral colleges: Germany's Bundesrat and India's Rajya Sabha seem to work. But I can't think of many, or any, sound arguments in favour of unilateral, centralised executive appointment of a large (105-member), non-judicial body. Many Canadians agree. Constitutional expert Ronald L Watts, writing in 1996, considered it "clear... that, of all the federal second chambers, the Canadian Senate has the least public legitimacy" (Comparing Federal Systems in the 1990s, pp 88-89). Movements to reform the Senate have gained momentum in the past 20-30 years, either by introducing some element of election, or by giving Provincial governments some role, or both. Usually the stated goal is a "Triple-E" Senate - Elected, Equal (among Provinces) and Effective (ie, with some veto powers).

So far, these proposals have all been shot down, either because Quebec doesn't want to make any concessions, or because the English-speakers don't want to make any concessions to Quebec, or because Prime Ministers don't want to throw away their power to hand out 105 life-tenured seats on the plush red benches.

Amending the Canadian Constitution to make the Senate elective would be hard - you need both federal Houses, plus, normally, 7 out of 10 Provincial legislatures, representing 50% of the population, but this rises to 10 out of 10 for changes to Senate representation. Having said that, amending the US Constitution is hard, too, but Americans managed it with the Seventeenth Amendment in 1911. In fact, for several decades before they formally amended the document, they changed how it operated in practice. States began to hold non-binding votes, at election time, when the populace could tell their legislators which candidate they wanted to be their Senator. The famous Lincoln-Douglas debates of 1858 took place between two contenders in one such beauty contest, for an Illinois Senate seat. It would be a brave legislator who wanted to face re-election telling his constituents "Y'all preferred Mr Lincoln, but I done sent Mr Douglas to Washington instead". Just as the US Electoral College when electing a President, or the British Monarch when appointing a Prime Minster, almost invariably follows th'election returns, US State legislators gradually exchanged an "efficient" for a merely "dignified" role in the selection of the federal upper house. When the Seventeenth Amendment was ratified in 1911, it did little more than make official what was already the working practice. Lesson: a legal discretionary power may be trumped by democratic legitimacy.

In Canada, the Province of Alberta has tried a similar tactic, by holding advisory Senate polls in an attempt to shame the federal government into either supporting a direct election amendment or, less ambitiously, into appointing a winner of such a poll when a vacancy in that Province's Senate representation next arises. It is, however, easier for sub-national legislatures to waive their own constitutional prerogatives than to pressure the federal government into waiving its constitutional prerogatives.

Alberta has had only two successes in upgrading its "Senators in Waiting" from bridesmaid to bride status, starting with Stan Waters (Reform Party: elected October 1989, appointed in June 1990 by Conservative Prime Minister Brian Mulroney) and recently repeated with Bert Brown (Conservative, first elected 1998, re-elected 2004, finally appointed in 2007 by Conservative Prime Minister Stephen Harper). (Why do disputes over elected Senators versus appointed Senators so often involve "Berts"?).

In addition, there are concerns that an elected Senate might be too majoritarian. Albertan law required multi-seat first-past-the-post "block vote" to choose its Senators in Waiting, which led to fears - not wholly unreasonable under the circumstances - that, with Prime Ministerial patronage abolished, women and minorities might be hardest hit. Alberta Senator Claudette Tardif (who got her seat the good old-fashioned way) warns that:

... an elected Senate could mirror the House of Commons in its under-representation of women and minorities if measures aren't implemented to ensure diversity.... [B]ecause Senators are appointed rather than elected, the Prime Minister can make appointments reflecting Canada's diversity. But if they are elected, the Upper House could be less representative, she added...

For example, women currently make up close to 37 per cent of the members of the Senate, while only 20 per cent of the House of Commons is made up of women. The first aboriginal [ie, Native American Indian] Senator was appointed in 1958, and Francophones have been represented in provinces outside of Quebec since 1871.

"If Senators were elected in the same manner as MPs, representation of minorities of every kind - women, aboriginal people, Francophone minority communities and others - would likely diminish," [Senateuse Tardif] writes. "Therefore, it is possible that the Senate would deprive itself of a great diversity of expertise, viewpoints and knowledge, should the impact of Senate reform on the representation of minorities across the country be ignored."...

"If Senators were elected in the same manner as MPs" - the key word, of course, is "if". Alberta uses winner-take-all plurality voting, which makes sense if you are waiting for individual seats to fall vacant one at a time. It would be problematic to use PR to choose four Senators-in-Waiting at once when only one can be appointed at a time, as this would leave the Prime Minister free to give the first seat to a candidate supported by a quota as low as 20%, while candidates representing the other 80% of voters miss out and have to wait. However, most of the elective-Senate reform proposals suggest Province-wide proportional representation, which would give an Upper House much like Australia's, in which women and "visible minorities" fare much better than in the Lower House, with its single-member electorates.

(For some reason, specifically the "Triple-E" proposals I've seen all seem to suggest six as the number of Senators per Province. Maybe this is to give a total chamber of 60-65 seats, so that electoral reform can be smuggled past public scrutiny as a "cutback amendment", but six is the second-worst number of seats you can have - after four - when using proportional representation, as it almost always ensures a 3-3 tie between left and right. Having said that, the 1998 Northern Ireland Good Friday peace accord specified PR with six-seaters, so maybe there is a method to the madness.)

(One of my contacts has suggested the Canadian reformers want six seats apiece in the expectation this would mean equal numbers of Anglophones and Francophones elected from the larger Provinces. If this really is the goal, it may be better served by having an odd number per Province at each election - say, 7, giving a Senate of 70-75, much like Australia's, assuming the Territories get a Senator or two each as well - and requiring parity, cumulatively, over successive elections. If and once, say, over three elections in a Province, one group - whether Francophones or Anglophones - has won 12 of the 21 seats, it would be held at three seats at each of the next three elections, to make the total 21 out of 42. In addition there should be a cap of 4 seats out of 7 for either side at any one election. Once, say, 4 Francophones are past the quota - or three if the above provision has kicked in - the remaining Francophone candidates would be excluded from the count.)

Reporting on Senator Brown's elevation, libertarian Canadian journalist Colby Cosh notes that the Liberal PMs' view was not just that they were not bound to appoint the Alberta straw-poll winner, but that they were bound not to. Cosh considers the Chrétien/ Martin line a reductio ad absurdum:

... at least [Canadian Liberal leader Stephane] Dion, unlike others in his party, spared us the complaints that it is "unconstitutional" for a Prime Minister to appoint a Senator who won an election and who otherwise meets the requirements of the office. According to this theory, the only eligible Albertans Mr Harper is categorically forbidden to appoint are the four people who were actually chosen by the province's voters in 2004. There could be no possible "constitutional" objection, after all, if Harper deliberately chose from the list of people who lost that election, or even if he pulled a random Albertan's name out of a hat on national television...

Here Colby is echoing the reasoning used by the Privy Council, then the supreme court of the British Empire, in R v Nat Bell Liquors [1922] 2 AC 128, when it upheld the Alberta Direct Legislation Act 1913 as valid even though it compelled the Provincial legislature to enact a proposal carried by voter-initiated referendum "without material alteration". Their Lordships concluded, with irony, that:

"It is impossible to say that [the Act] was not an Act of the Legislature... [merely] because it was the statutory duty of the Legislature to pass it. If the deference to the will of the people, which is involved in adopting without material alteration a measure of which the people has [sic] approved, were held to prevent it from being a competent Act, it would seem to follow that the Legislature would only be truly competent to legislate either in defiance of popular will or on subjects upon which the people is either wholly ignorant or wholly indifferent."

Zing! Gotcha! If you can choose, then you can choose not to choose, ie, to follow someone else's choice. Otherwise you don't really have a choice. Case closed, no? Well, no. As made clear above, I'm no fan of an appointed Upper House, whether 100% appointed like the Canadian Senate, or only 20% appointed, like the Australian). But there's an excluded middle position here that Colby and the PrivCo haven't refuted.

It's entirely coherent, not self-contradictory, to authorise some person or body to make a particular decision, but also to stipulate (or imply) that a decision so made is invalid or void if the decision-maker is "acting under dictation", as the lawyers say. You could paraphrase section 24 of the Canadian Constitution Act 1867 (nee the British North America Act) as saying, in effect:

"Whenever a vacancy occurs in the Senate representation for a particular Province, the Prime Minister shall fill that vacancy by appointing the person, being a resident of that Province, whom the Prime Minister, in his or her own judgment, believes to be the most fit and proper person available."

This would be a reasonable paraphrase; you can imagine a democracy writing something like that into its Constitution, in as many words. But phrased that way, it would clearly make it unconstitutional for the Prime Minister to abdicate his or her own independent judgment. Then, if it became clear that the PM had appointed J Smith for no other plausible reason than that Smith had won a popular election in that Province (or, for that matter, had been put forward by the Premier of that Province), then someone who has sufficient legal standing (presumably, any voter of that Province) could petition the Supreme Court either (i) to bar that person from being appointed, or (ii) at least to suspend that appointment unless and until the PM has justified or reconsidered it... just as if the PM chose Smith because Smith paid the PM a hefty bribe (or, for that matter, because the PM pulled Smith’s name from a hat on national television).

(It's true that jurors sometimes - allegedly - flip a coin to decide guilt or innocence in a trial with confusing legal or factual issues. And those convictions or (especially) acquittals often stand, because juries (a) do not publicly state reasons for their verdicts, and (b) give only one of two verdicts. But when decision-makers (a) must state reasons for their decision, and/or (b) have a very wide menu of options, it is much easier to detect extraneous influences. If a Province has 1 million adult voters, there are nearly five hundred thousand million combinations of names that could come up if only two names are chosen. If the Prime Minister's selection of names "just happened" to match the four chosen in the Senatorial poll, the Supreme Court would have no difficulty at all in flushing out an arguably improper motive.)

This sort of judicial review - with the courts recognising that a certain other official or body rightfully enjoys a discretion, while insisting that each exercise of that discretion must represent the official's or body's own honest, reasonable and informed judgment - is well-established in common law systems. (Ironically, the classic case that reiterates this rule against "acting under dictation", Roncarelli v Duplessis[1959] SCR 121, is from Canada).

So, in the words of the prophet Brian: "You don't need to follow me! You've got to think for yourselves!"

Friday, June 08, 2007

Orin Kerr on "Studying Engineering versus Studying Law"

I enrolled in law school after engineering graduate school, and people occasionally ask me if I have advice for engineering graduates planning to study law. ... I tend to think engineering education provides a pretty good background for law school, but that there are some pitfalls to keep in mind. Engineers tend to have two possible advantages over other entering law students. First, engineers usually have a very high tolerance for pain. It takes a lot of time and energy to "get" law school, and former engineers are used to facing that kind of challenge... Second, studying engineering trains students to think logically, step by step, and that kind of logical thinking can sometimes help students see relationships more easily than students with some other backgrounds.

I mentioned a pitfall, however and that pitfall is the major difference between studying engineering and studying law. Engineers study nature, while lawyers study something man-made... Law is man-made, and has all the uncertainty and open texture of any human endeavor. Roughly speaking, legal systems are made when a bunch of people get together and agree to form a set of rules for making rules. They write down those rules, and then enough people respect that agreement that they start to see themselves bound by it. The people in the institutions set up by the agreement start issuing new rules, and they write those down, too. So whereas in engineering, the "laws" come from nature, in the law we have man-made rules devised under man-made rules for making those rules.... . Engineering offers certainty, at least subject to assumptions; if an equation describes how the world works, then it describes how the world actually works. You have certainty in the equation. But man-made processes are very different. Those rules are bound to have some areas of certainty and other areas of uncertainty, and you need to get used to it. You need to know how to identify when something is (or is not) uncertain and why, and to know the typical arguments for how that uncertainty could be resolved if someone (such as a judge) must resolve it.

This reminds me of one simple illustration I used to use to show first-year students the difference between the "interpretative" and the "creative" views of judging:

"In 1930, Clyde W Tombaugh discovered the planet Pluto. Also, in 1930, William Faulkner's novel The Sound and the Fury was published. What's the difference? If Tombaugh hadn't discovered Pluto, it would still be there, in exactly the same form, waiting to be found by someone else. But if Faulkner had never written The Sound and the Fury, it would never exist, and the chance of someone else happening to write the same story by accident is infinitesimally tiny (even if you had a million monkeys with a million typewriters). That shows how different legal scholars view judge-made law: is it waiting there to be discovered, or do judges have to create it?"

The problem with this neat little dichotomy, which served me so well through so many daunting first-year tutorials, is that on 24 August 2006, the International Astronomical Union (IAU) reclassified Pluto as a "dwarf planet", rather than a "planet" proper. So even if the piece of rock is still in the same place in the solar system, what you categorise it as is still a matter of human judgment.

Moreover, as far as "creative" works is concerned, the fact that someone at Disney created The Lion King - ex nihilo, without ever having heard of Kimba the White Lion (and who would accuse Disney of falsehood?) - shows that the chance of random, uncoordinated but near-exact replicability is much higher than I had assumed a priori.

Thursday, October 12, 2006

Spoken in a Darth Vader voice...

Sunday, April 09, 2006

Australian Electoral System 101

Recently I was emailed by a US attorney seeking some information about Australia's electoral laws. My brief "for dummies" may be of interest to some, desperate high-school senior in Iowa with a term paper due tomorrow...
In Australia, federal electoral boundaries (for the House of Reps: the Senate is elected by Single Transferable Vote PR statewide) are determined solely by federal law, while State electoral boundaries are determined solely under State law. Unlike the US, we see neither State legislators drawing Federal electoral maps, nor Federal judges re-drawing State electoral maps! The two processes are parallel rather than mixed. Also, State elections need not (indeed, under current Federal law, *must* not) be held on the same day as federal elections. And finally, we have only maximum parliamentary terms, not fixed election dates. A few chambers (federal Senate, both Victorian State houses) have terms that are *normally* fixed, but even then there are reserve provisions for a dissolution in case of protracted deadlock -- unlike the US.
The practice before 1983 (at federal level) and before circa 1975 to circa 1990 (for the six States) was that the Parliament concerned enacted each "redistribution of electorates", as we call it, via a new Act. Usually the Act would have a Schedule setting out maps of the new boundaries, together with descriptions ("... and then along Smith Road for 2 miles 20 feet...", and so forth).
At the same time, the actual work of drawing the proposed new boundaries was done by commissions that were usually reasonably non-partisan (or would be by US standards). Normally, three members, appointed by the Cabinet concerned, and usually were (or were required by law to be) [a] the chief electoral officer, [b] a judge of some kind, and [c] a public servant, usually from the surveyor-general's Dept or equivalent, ie someone who knew maps. However, their recommended redistribution was not self-executing. It could be amended by both Houses of Parliament, or even rejected by a single House (leaving the existing boundaries in place by default.) My understanding is that in some cases MPs would reject, amend, or strategically delay a commission's recommended changes so as to preserve their existing advantage.
Australia has no federal Constitutional requirement of equal-population [federal or State] electorates within States, and the only federal Constitutional trigger for an intra-State House of Reps redistricting would be an alteration to the number of seats allocated to the State. We have censuses every 5 years, not 10, but since our Constitution requires House of Reps seats to be (constantly re-) distributed by population among States "according to the latest statistics of the Commonwealth", the High Court has interpreted this to require inter-State re-calculations every three to six years -- based on estimates if need be.
Before about 1980, the Commonwealth and most States had statutory (not entrenched Constitutional) requirements that all electorates be within 20% of the average (in enrolled voters, not simple population) * when each new distribution was made * -- but usually failed to require later revisions, either at set intervals or when enough electoral districts were under 80% or over 120% of the average.
In the past 20-30 years, the Commonwealth and all States have moved to make the process more transparent and self-executing. Main changes are:--
(a) membership of the boundary commission is usually fixed by law (ex officio), with little room for Cabinets to appoint "on side" public officials
(b) In most cases, the allowable variation has been reduced to 10% of the Statewide average. However, the Tasmanian upper house, and both West Australian houses, have wide variations in voter numbers among rural and urban districts. The High Court of Australia has twice rejected arguments that there is an implied right under the Federal Constitution to cast votes of equal value in Federal
(1975) or State (1996) elections.
Queensland (the only unicameral State) formerly had an extremely unequal system, but in 1990-92 this was replaced with a compromise system whereby, for every district over 100,000 square kilometers in area, the commission may treat up to 1% of its area (in km2) as "phantom voters" to boost its notional voter population and bring it within the normal 10% variation. This currently affects only 5 districts out of 89; each is larger in area than many a European nation; and they usually split either 3-2 or 2-3 between Labor and the conservative coalition (being centred around farming or mining areas) so the former "Queensland gerrymander" [sic], so controversial 20-30 years ago, has dropped below the political radar since 1992.
(c) a new distribution is required every (usually) seven years, or when a third of all electorates are under 90% or over 110% (or if the State gains or loses seats).
In some jurisdictions (NSW, South Australia and the Australian Capital Territory), the basic electoral principles are entrenched, so they can't be changed without a referendum. But even when they rely on ordinary statute, the overall trend has been very much to reduce the immediate control of the Parliament (which, in Australia, also means the Cabinet) over the precise location of electoral boundaries.
The impartiality of the commissions is normally accepted on all sides. Political parties submit their own proposals for revised boundaries (which the commissioners take into account), and each party usually nominates its opponents' held electorates for abolition! Because we have compulsory enrollment and compulsory voting, so that turnout and results are not affected by weather etc, it is often easy to predict which party a given distribution will favour. Nonetheless there has been almost no criticism that I'm aware of, of the commissioners as biased.
On the other hand, there have been complaints that "neutral" criteria can be rigged to favour a particular side. Eg, in South Australia the Commissioners are required to try to arrange electorates so that (inter alia) a party with 50% of the votes will win a majority of seats. The SA commission has found the safest way to ensure this is to create a lot of marginal districts. Thus SA has largely seen "windscreen-wiper" landslides in the past 15 years.
SA in 1993 was an extreme case (a 37-10 majority, which is more unusual in an Australian State than a US one -- our States tend to be more evenly balanced in voting terms between Labor and the conservatives, with no equivalent of a "Solid South" or "Red/ Blue") and their election 2 weeks ago was, from memory, shaping up to be nearly as extreme.
As another example, in 1991 the Labor and Liberal Parties in New South Wales clashed bitterly over whether the State Legislative Assembly (Lower House) should have 91 seats or 99. Reading about it in Queensland newspapers, I couldn't work out why the heated debate until someone explained that the "backroom boys" had done the math[s], probably on a computer. With 91 seats, the average voters per electorate would be more than with 99 seats, which would mean that districts based on regional towns would pull in more or less of the surrounding rural hinterland, which would favour either Labor or Liberal ... I forget which, but it would favour one side!
All Australian parliamentary chambers bar two have electoral districts with a uniform seat number. The Tasmanian lower house and Victorian upper house have 5-seat districts; the NSW and South Australian upper houses (like the Federal Senate) have Statewide electorates (NSW - 42 seats, 21 filled each election; SA - 22 seats per State, 11 filled each election; Senate - 12 seats per State, 6 filled each election). The ACT Assembly and the West Australian upper house mix 5-seat and 7-seat districts. All other chambers have single-seat electorates.
With the ACT and WA cases, the relevant legislation specifies broadly which regions shall have 7-seaters (the most densely populated) and which regions have 5. NSW used STV-PR briefly in the 1930s, around the same time that New York City did, and the NSW Act said something along the lines of "there shall be 15 three-seat electorates, in rural areas, and 9 five-seat electorates, in urban areas".
[Caveat: I'm generalizing very widely and impressionistically here, often from memory...]

Abstract: This paper examines the relationship between the productivity of the US Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this paper is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices has resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions issued per term. On the whole, the empirical findings of this paper do not provide clear support for this assertion.

Abstract: Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision-making, and elected judges are less consistent in their voting patterns than appointed judges. In addition, if interest in state judicial elections continues to wane and these contests are not robust, states no longer even benefits from the participatory advantages of an elective system. Using the State of Wisconsin as an example, this Article suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections, and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision-making process.

US blogger Michael Williams has a post here (link thanks to Clayton Cramer) advocating term limits for US federal judges:

It's time to consider amending the Constitution to impose limited terms on federal judges, all the way to the top at the Supreme Court. The terms should be nice and long, say 15 years, but considerably shorter than the lifetime tenure now enjoyed by our judicial aristocracy. The idea that whomever President Bush appoints during his second term could still be making law for my grandchildren is ridiculous. Maybe in an ideal world judges-for-life work, but in reality they're no better than presidents-for-life.
The idea behind life terms is that the judiciary shouldn't be politicised, but take a look around -- it's a little too late for that. I don't think federal judges should be popularly elected (as many state judges are), but I don't think we should have to impeach them be rid of them. Limit judges to one 15-year term, and then let them ply a useful trade in the public sector.

[Here's my thoughts, which I posted also at Michael's blog.]
This idea's been supported by both Michael Parenti, of the Left (in Democracy For the Few, St Martins, 1988, p 315) and Gregg Easterbrook, of the centre-Right (in "Geritol Justice: Is the Supreme Court Senile?", The New Republic 19-26 August 1991, pp 17-19):

When the Constitutional Convention of 1787 conferred on Supreme Court justices a lifetime tenure almost impossible to revoke, life membership did not mean what it means today… In 1787, the adult life expectancy was less than 39 years. Today the number is nearly double that. Stays on the Court have lengthened almost exactly in sync, the first nine justices… served an average of 8.6 years, while the last nine to leave… have presided an average of 16.7 years. With the median age of the population at 32 years, the median age on the Supreme Court is now 67. Three members of the current Court have been seated more than two decades, notably longer than what the Constitution now considers to be the limit for a President to hold office...
Suppose each Supreme Court seating lasted only ten years... A term limit would… end the psychological and political pressure on justices to hand on long after their mental acuity falters...
Regular succession of seats would provide many more opportunities to appoint women and members of minority groups… [and] would end the special fear of appointing relatively young Justices, since they would not be mistakes who hang on decade after decade… Non-geriatric ex-Supremes would be in great demand as law partners, and thus would have no financial needs of concern to taxpayers. (pp 17-18).

In Australia, we have a compromise position between fixed terms and (literal) lifetime tenure: a constitutional retirement age. A 1977 referendum amended the Federal Constitution to set this age at 70 for High Court justices and to let Parliament fix a [non-retrospective] lower age for inferior Federal Court judges. Given that almost any jurist eminent enough to be appointed to the national supreme court will be aged at least 50-55, this sets a de facto term of 15-20 years. Before 1977, many Justices served into their eighties, and one spent four decades on the High Court!
Most States have a similar provision, setting either 70 or 72. (I note that Canadian Senators must retire at 75). A curious anomaly arose last week when a Queensland judge, Brian Boulton, was required to retire on his 70th birthday as required by that State's law; he immediately accepted a judicial appointment across the State line in New South Wales, where the age is 72! Our former Chief Justice, Sir Anthony Mason, retired from the High Court at 70 in 1995, but has served since by invitation on the supreme court of Fiji.
It may well seem a waste to bump active and keen-minded jurists off our own High Court, when they're still quite capable on serving on other nations'. But balanced against the "false negative" of, say, a near-senile Thurgood Marshall who can do no more than "hang on until the Democrats get back in the White House" and let his clerks write all his opinions, this "false positive" is probably the lesser evil.
UPDATE: Dahlia Lithwick devastatingly refutes the idea of a mandatory judicial retirement age:

... Recent polls show that the majority of the American public supports the idea of mandatory retirement for judges with life tenure. I disagree. "Lifetime appointments" should mean just that...

Wednesday, May 25, 2005

"Extraordinary and reprehensible circumstances", or will just plain "extraordinary" do?

Opposition party pledges not to use its Senate numbers to block executive government's proposals, except in "extraordinary circumstances".
Sound familiar?
What's really unsettling is: this comes just one week after Canada re-enacted the soap opera of Australia's 1997 Cheryl Kernot defection. May all the Lords of Kobol preserve us from some other democracy next week or the week after emulating Australia's "Joh for PM" farce...
UPDATE: America, at least, has already had it own Joh for P.M. campaign - nineteen years before Australia did, in fact, when George Wallace ran for president in 1968.